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Attorney(S)
  • Cozzens, for the plaintiff. Ames and Potter, for the defendant. Cozzens, for the plaintiff, cited the "Act respecting Guardians," Pub. Laws, page 275, Sec. 14. "No action shall be sustained against any guardian within twelve months after his appointment and notice thereof, unless the claim exhibited is wholly or in part rejected by the guardian; in which case the creditor may bring his suit forthwith, and shall be entitled to the whole or a dividend, if the estate should prove insolvent, upon such sums as he may recover in such suit." He said, without that statute the regular course would be to declare against the ward, and for the ward to come into court and defend by his guardian. But the statute has changed the common law method by binding the regularly appointed guardian to pay the claims of his ward, and, upon his refusal, by subjecting him to the suits thereon. The declaration alleges the indebtedness of Knight, which we propose to prove, and concludes with the implication, raised by the law itself, that Angell by accepting the appointment as guardian, became liable for and undertook to pay the debts of the ward. If we recover, the execution runs against the assets of the ward in the hands of the guardian. It does not touch the guardian personally. Ames, for the defendant. If the General Assembly had contemplated a change in the common law proceedings, they would have employed language more precise and explicit. We speak familiarly of suits against guardians, because, although the declaration complains of the ward, yet the guardian comes into court and defends; and it is in this sense that the statute speaks. This is not analogous to a suit against an administrator, because the intestate being dead, cannot be sued. And what will be the consequence of such suits? Are the guardian's person and estate subject to the judgment? The phrase "as guardian," is no protection, because that may be mere descriptio personoe. In the old way he is safe under the aegis of the common law.
Judges
  • Per curiam.
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citation codes
Attorney(S)
  • Cozzens, for the plaintiff. Ames and Potter, for the defendant. Cozzens, for the plaintiff, cited the "Act respecting Guardians," Pub. Laws, page 275, Sec. 14. "No action shall be sustained against any guardian within twelve months after his appointment and notice thereof, unless the claim exhibited is wholly or in part rejected by the guardian; in which case the creditor may bring his suit forthwith, and shall be entitled to the whole or a dividend, if the estate should prove insolvent, upon such sums as he may recover in such suit." He said, without that statute the regular course would be to declare against the ward, and for the ward to come into court and defend by his guardian. But the statute has changed the common law method by binding the regularly appointed guardian to pay the claims of his ward, and, upon his refusal, by subjecting him to the suits thereon. The declaration alleges the indebtedness of Knight, which we propose to prove, and concludes with the implication, raised by the law itself, that Angell by accepting the appointment as guardian, became liable for and undertook to pay the debts of the ward. If we recover, the execution runs against the assets of the ward in the hands of the guardian. It does not touch the guardian personally. Ames, for the defendant. If the General Assembly had contemplated a change in the common law proceedings, they would have employed language more precise and explicit. We speak familiarly of suits against guardians, because, although the declaration complains of the ward, yet the guardian comes into court and defends; and it is in this sense that the statute speaks. This is not analogous to a suit against an administrator, because the intestate being dead, cannot be sued. And what will be the consequence of such suits? Are the guardian's person and estate subject to the judgment? The phrase "as guardian," is no protection, because that may be mere descriptio personoe. In the old way he is safe under the aegis of the common law.
Judges
  • Per curiam.
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Smart Summary

ELIZABETH M. ARNOLD v. ANDREW A. ANGELL.

The "Act respecting Guardians," does not authorize the creditor to declare against the guardian upon the debts of the ward. Whether service of the writ upon the guardian is service upon the ward — quaere?

Per curiam.

In regard to the service of the writ, whether under the statute service upon the guardian is not good service upon the ward, we shall not decide. But allowing the service to be good, yet the declaration should be against the] ward. He is the party to whom the services were rendered; he made the promises and he should be the party sued. We do not think the statute intends to subject the guardian to judgment upon the debts of his ward.

The plaintiff has leave to amend.

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ELIZABETH M. ARNOLD v. ANDREW A. ANGELL
(Sep 1, 1850)